Ministry of Sound hits wrong note with Spotify lawsuit

Music Ally are reporting that UK dance brand Ministry of Sound (MoS) is suing Spotify for copyright infringement, claiming that the service has refused to remove user playlists that mirror Ministry of Sound compilation albums, including some which use the MoS brand in their playlist titles.

What is it all about ? Well in an opinion piece in The Guardian MoS chief executive, Lohan Presencer first waffles about how Spotify is not all it’s cracked up to be etc etc before saying: –

“You won’t find our compilation albums on Spotify. Why not? Because its business model does not recognise that our products have any material value. It doesn’t consider them worth licensing. Which would be entirely its prerogative had our paths not crossed. But last year we noticed something on Spotify. Users of the service were copying our compilations. They were posting them as their own playlists and calling them “Ministry of Sound”. We assumed it was an oversight on Spotify’s part and contacted the company to request it remove the offending playlists. It declined, claiming there was no infringement and it wasn’t its responsibility to police its users.”

It seems to me MoS is more annoyed that Spotify wont licence their compilations than anything else. It is about licensing, plain and simple. The fact that users are re-creating MoS ‘albums’ from the individual tracks from the original artists seems a bit of a red herring. Although (depending on just how many people are doing this) it does give weight to an argument that Spotify should be licensing their compilations if users are showing there is a market for them. And I presume that is a user plays Calvin Harris’ I Need Your Love (Feat. Ellie Goulding) from MoS’s latest annual Ibiza album rather than Harris’s own it gets recorded as such.

But let us, for a moment, forget all about that.

Without seeing the documents they have filed with the court it is hard to make a definitive judgement on what they are going after Spotify with, but I think new can immediately say primary infringement is a non-starter as Spotify are not creating any MoS playlists themselves or in my knowledge as a user of the service, actively encouraging users to do so. So that leaves the notion of secondary infringement – basically if anyone is infringing it would be the Spotify users creating the playlists, but as is the case when p2p sites and Youtbe etc are sued the argument is that the service provider should be preventing this happened and by not doing so it is condoning it . Now, even leaving aside the ‘mere conduit’ defence that Spotify could mount here, I still feel MoS case is quite weak. These users are not ‘copying [their] compilations’ because their compilations are not there to copy. They are recreating them from the individual tracks available on Spotify. Some are then calling them MoS to help themselves identify their playlist. Are MoS planning to run ‘passing off’ charges against individual Spotify users or Spotify for secondary ‘passing off’ of playlists implying they are real MoS ones??

Again, if Spotify was licensing MoS content you can bet your life that they would not be complaining about this.

And of course all this still rests upon whether a court will even rule that MoS’s compilations merit copyright protection.

Does collecting a specific group of songs into a compilation merit protection? Or would it only get protection if the tracks were presented in a specific order? – and as a recent documentary on the NTWICM compilation pointed out there is a lot of wrangling and money involved in getting places such as track one.

Now if they could argue that a digital copy of their compilation albums were in fact ‘databases’ then they could try and argue that through the selection or arrangement of the data, the database’s author expressed his creative ability in an original manner by making the creative choices in arranging the tracks – adding , if you will, his or her “personal touch” . That might, if the courts followed the ECJ when it examined the Sports Dataco football fixtures cases, be an argument that could hold water … but I still think it would be a pointless argument.

And once all that is decided that still leaves the question , as the Music Ally article author puts it is, if a compilation album’s structure can be copyrighted, surely that would also mean (in this digital world) that it could also logically apply to a Spotify playlist created by you or I ? And therefore if any record company’s future compilation album’s tracklisting mirrored one you’d already created in a streaming playlist you would have copyright infringement case against them too.